Migration Act 1958 - General Direction under section 499 - Australia's Criminal Deportation Policy - Criminal Deportation under section 200 (Direction No. 9 of 1998)

The direction introduces and operationalises several core legal and administrative concepts that structure criminal deportation decision‑making.

Potential deportee. The direction provides specific eligibility criteria for who is a “potential deportee”: a non‑citizen convicted in Australia of an offence with a sentence of life imprisonment or at least one year, where the person was a permanent resident (or applicable New Zealand status holder) who had been in Australia for less than ten years in total when the offence was committed (preamble). The direction also lists three considerations that are irrelevant to that determination (length of time at sentencing, actual serving of a year, and non‑parole periods shorter than a year) (preamble).

Primary and other considerations. Decision makers are told to adopt a balancing process but to treat two matters as primary considerations: (1) the expectations of the Australian community; and (2) the best interests of children under 18 in cases involving parental relationships (paras 5-6). Other considerations include the degree of hardship to the potential deportee and the degree of hardship to Australian citizens or permanent residents (paras 5, 7, 21-24). The repeated instruction is that decision makers “should have due regard” to the Government’s view on the listed factors (multiple paras).

Community protection and expectations. The direction frames “community expectations” around two themes: protection of the community from risk and the expectation that non‑citizens who commit crimes abhorrent to the community will be removed (para 8). It lists factors relevant to community protection , seriousness/nature of the crime, risk of recidivism, and whether deportation would deter or prevent similar offences , and supplies examples of offences the Government regards as very serious (paras 9-14, 11).

Best interests of the child. The direction treats the interests of children under 18 as a primary consideration (para 6; paras 16-20). It instructs decision makers to consider each child’s interests individually and collectively, notes the default assumption that remaining with parents normally serves a child’s best interests but identifies countervailing circumstances (abuse, trauma), and lists factors to assess such as age, time spent in Australia, language and cultural barriers, medical needs and degree of dependence (paras 16-20).

International obligations and limits. The direction reminds decision makers of Australia’s obligations under the ICCPR, the Convention Against Torture (CAT) and the Refugees Convention. It treats CAT’s prohibition on refoulement as absolute (para 27), notes ICCPR’s implicit non‑refoulement framing (para 26), and explains the Refugees Convention Article 33(1) non‑refoulement rule and the “particularly serious crime” exception that removes Article 33(1) protection for certain final convictions (paras 28-31). For CAT and ICCPR points the direction explicitly instructs decision makers to contact the Legal Policy Section in Central Office (paras 26-27).

Procedural timing and detention. The direction provides procedural expectations: decisions will normally be made toward the end of the custodial sentence to allow decision‑making and appeal prior to release (preamble; para 32). It states the Government’s view that deportation should normally occur after the custodial portion of the sentence has been completed and that state authorities or the Governor‑General (for Commonwealth prisoners) decide parole/remission, but notes that a person may be detained under the Migration Act pending finalisation of deportation arrangements and “cannot expect to enjoy any period at liberty” between sentence expiration and deportation (paras 32-33).

Scope and limits. The instrument is expressed as a General Direction under s499 and is addressed to “any person or body having functions or powers in relation to the deportation of a non‑citizen under section 200 of the Act” (preamble; final paragraph). It contains the non‑discrimination clause that deportation decisions are to be made without discrimination on listed grounds (para 2), and a statement that cultural background should not alter application of the law (para 3).

Primary affected persons. The direction directly targets decision makers exercising deportation functions under the Migration Act (preamble; final paragraph). Operationally, those decision makers will be officers and bodies within the Department of Immigration and Multicultural Affairs (as at instrument date), the Minister where the Minister personally decides, and any statutory or executive authorities responsible for implementing deportation decisions under section 200 procedures.

Potential deportees. The direction directly affects non‑citizens convicted in Australia of offences carrying sentences of life imprisonment or at least one year, provided they were permanent residents (or certain New Zealand status holders) who had been in Australia for less than ten years at the time the offence was committed (preamble). Those persons are identified as “potential deportees” for the purposes of the direction and thereby fall within the Rule’s operative ambit.

Family and other Australian residents. The direction requires consideration of harms to Australian citizens and permanent residents including spouses, de facto partners, other family members, social and business associates (paras 22-24). It treats children under 18 in parental relationships as a primary consideration (paras 16-20). Therefore Australian family members and social ties are a secondary but material class affected by decisions made under the direction.

State and federal corrections authorities. The direction explicitly delegates parole, remission and conditions of serving sentences to “the appropriate State authorities, or the Governor‑General in the case of Commonwealth prisoners” (para 32). That places operational interaction and coordination burdens on corrections agencies responsible for release, parole or sentence remission timing if deportation is to coincide with release (paras 32-33).

Ministerial office and Parliament. The instrument empowers the Minister to make deportation decisions and to declare a person an “excluded person” when the Minister acts personally and considers it in the national interest; where that occurs the right to appeal to the Administrative Appeals Tribunal (AAT) is removed, and the Minister must table notice of the decision before both Houses of Parliament within 15 sitting days (preamble). That procedural mechanism affects the Minister’s office and Parliament directly, by requiring tabling when an excluded‑person declaration is used.

Legal advisers and Legal Policy Section. The direction specifically instructs decision makers to consult the Legal Policy Section in Central Office for assistance on ICCPR and CAT points (paras 26-27). That creates a role for central legal policy advisers in cases raising international law issues and thus affects those advisers’ workload.

Administrative costs and taxpayers. The direction contemplates continued detention under the Migration Act pending deportation arrangements if deportation does not directly follow release; it therefore implicates state or federal detention costs borne by government budgets (para 33). The direction does not quantify costs but establishes an administrative process that has fiscal implications for detention, removal logistics and legal representation for appealable cases.

AAT and judicial review. Individuals who have a sponsor who is an Australian citizen or permanent resident have a right to merit review by the AAT against a deportation decision, unless an excluded‑person declaration has been made by the Minister (preamble). This creates an avenue for third‑party sponsors to influence the legal process and affects the Administrative Appeals Tribunal’s caseload where appeals are available.

Businesses and labour markets. The direction’s application can remove non‑citizen workers or businesspeople (paras 22(d), 23(b)), particularly where deportation follows a criminal conviction in categories the direction identifies as “very serious” (para 11). It does not provide economic impact studies; however the mechanics indicate that removal of non‑citizens can have effects on employers, business associates and contracts particularly where the direction calls for considering business ties (para 22(d)).

Journalists, researchers and civil society. Because the instrument changes ministerial decision‑making practice and includes a public tabling requirement for excluded‑person declarations (preamble), it affects public transparency and parliamentary oversight mechanisms, and thus the interests of commentators, civil society groups and media monitoring deportation practice.

Duties on decision makers. The direction imposes a suite of duties framed as “should have due regard” to specified considerations. Decision makers must:

• Treat deportation decisions without discrimination on the enumerated grounds (para 2).

• Ensure a person’s cultural background does not result in differing applications of the law (para 3).

• Apply a balancing process that gives prominence to the two primary considerations , community expectations and, where relevant, the best interests of children under 18 , while also taking other relevant considerations into account (paras 5-7).

• Have due regard to the factors relevant to community protection, including seriousness and nature of the crime, recidivism risk, and the potential deterrent or preventive effect of deportation (paras 9-14).

• Assess the best interests of children under 18 individually and collectively, including presumptions and countervailing factors such as abuse or trauma, and consider listed indicators (paras 16-20).

• Consider other relevant matters such as hardship to the potential deportee and hardship to Australian citizens or permanent residents, including specific factors listed (paras 21-24).

• Consider international obligations under ICCPR, CAT and the Refugees Convention, and seek Legal Policy Section advice where indicated (paras 25-31).

• Arrange for deportation timing to coincide with completion of the custodial sentence and liaise with State authorities or the Governor‑General where parole or remission questions arise; recognise that migration detention may continue pending deportation arrangements (paras 32-33).

Rights of the potential deportee. The direction records the existence of appeal rights to the Administrative Appeals Tribunal for deportation decisions where the potential deportee’s sponsor is an Australian citizen or permanent resident, except where the Minister personally makes the deportation decision and declares the person an excluded person (preamble). The direction instructs that the AAT is empowered to review the merits when the right of appeal exists (preamble). The direction also requires decision makers to make decisions with the information reasonably necessary to reach a sound view and to normally decide towards the end of the sentence to allow time for decision and appeal (preamble; para 32).

Minister’s special authority. The Minister retains personal authority to make a deportation decision and concurrently declare the person an “excluded person,” which removes AAT review for that case; where the Minister invokes that power, the Minister must table notice of the decision before both Houses of Parliament within 15 sitting days (preamble). The direction characterises this power as usable only “where the circumstances are so serious that the Minister acting personally decides that it is in the national interest to do so” (preamble).

Non‑discrimination duty. Decision makers must make deportation decisions “without any form of discrimination with respect to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status” (para 2). That places a duty on decision makers to avoid improper consideration of identity characteristics enumerated in the instrument.

Duty to consider international law. Decision makers are explicitly told to consider non‑refoulement obligations under ICCPR and CAT and Refugees Convention protection considerations at the time the deportation decision is made; CAT’s prohibition is described as absolute and the Refugees Convention Article 33(1) protection applies unless a particularly serious crime exception is triggered (paras 25-31). The direction directs consultation with Legal Policy Section on ICCPR and CAT matters (paras 26-27).

Duty to document and weigh child interests. The instrument requires separate analysis for each child and notes multiple factors to be considered when determining best interests, including age, time in Australia, language and cultural barriers, medical problems, and emotional dependence; decision makers are told to have due regard to these factors (paras 16-20).

Procedural duty on timing. Decision makers have a procedural expectation to ensure decisions are made towards the end of the offender’s sentence such that decision and appeal can occur before release; deportation is normally to follow completion of the custodial sentence (preamble; para 32). Corrections agencies retain authority over parole and remission decisions (para 32).

Right of appeal and limits. The potential deportee has a right to appeal to the AAT provided they have an eligible sponsor, and the AAT may review merits when appealable (preamble). This right is extinguished when the Minister both decides and declares the person excluded; the Minister must then table the decision in Parliament (preamble).

Duty to avoid weight on post‑liability ties. The direction instructs that social ties developed after liability for deportation arose, especially after the liability had been brought to the offender’s notice, may be given less weight in assessing hardship (paras 22(e), 24(c)). That creates a duty to treat post‑liability social integration as a potentially weaker countervailing factor.

The General Direction itself does not create criminal penalties or civil sanctions; it is guidance given under section 499 to those exercising deportation functions (preamble). Enforcement of the instrument occurs through administrative decision‑making under the Migration Act, with practical enforcement mechanisms and consequences defined in the Act and its operative deportation provisions (the direction references sections 200 and 201 as the functional frame in the preamble). The instrument outlines how deportation should be decided and implemented rather than prescribing penalties distinct from the deportation action.

Deportation as administrative enforcement. The primary enforcement mechanism contemplated by the direction is the administrative exercise of the deportation power. The functional consequence for a person subject to a deportation decision is removal from Australia; the direction frames this as an exercise of national sovereignty to decide who remains in the community (preamble; para 4). It establishes the criteria and considerations to guide that administrative enforcement decision (paras 5-24).

Detention and post‑sentence custody. The direction states that a deportee may continue to be held in custody pursuant to the Migration Act pending finalisation of deportation arrangements and cannot expect to enjoy any period at liberty between the expiration of their penal servitude and deportation (para 33). This creates an enforcement mechanism whereby the person can be detained under migration powers even after the penal sentence has elapsed, if deportation logistics require it or if deportation is to be arranged. The direction also places operational responsibilities on corrections authorities and the Minister to coordinate timing of release and deportation (para 32).

Administrative review and limitations. Where appeal rights to the Administrative Appeals Tribunal exist, the AAT is empowered to review the merits of the deportation decision (preamble). Thus the AAT’s merit review function is an internal check on administrative enforcement. However, the Minister’s power to make an excluded‑person declaration when acting personally removes the AAT review right for that individual (preamble). In those cases the instrument imposes a parliamentary oversight mechanism , tabling the excluded‑person notice before both Houses within 15 sitting days , rather than judicial or tribunal review (preamble).

International law constraints on enforcement. The direction makes enforcement subject to international law limits. It instructs that deportation that would result in refoulement in breach of CAT is absolutely prohibited and that ICCPR may require non‑refoulement where expulsion would foreseeably result in serious human rights violations (paras 26-27). It further requires assessment under the Refugees Convention Article 33(1) standard and recognition of the “particularly serious crime” exception where applicable (paras 28-31). These international obligations can operate as substantive limits on enforcement action and as grounds for legal or administrative challenge.

Procedural consequence of excluded‑person declaration. The instrument creates a procedural safeguard/constraint where the Minister’s excluded‑person declaration removes AAT review; however, it substitutes a transparency duty on the Minister to table the decision to both Houses of Parliament within 15 sitting days (preamble). That is an enforcement‑adjacent procedural mechanism rather than an enforcement penalty, and it shifts the mechanism of political and parliamentary scrutiny onto the tabling requirement.

Costs to government and practical enforcement burdens. While the direction does not quantify costs, it contemplates ongoing detention pending deportation arrangements (para 33), coordination with state corrections authorities on timing and remission (para 32), and legal advice on international law issues (paras 26-27). Those elements describe concrete administrative activities that carry fiscal and capacity implications for agencies involved in enforcement.

No new criminal sanctions. The instrument provides no new criminal liability or penalties; it is an administrative direction on how to exercise deportation powers already contained in the Act (preamble). The enforcement outcome contemplated is administrative removal rather than imposition of additional judicial penalties.

Migration Act provisions. The General Direction is issued pursuant to section 499 of the Migration Act and is addressed to persons/bodies with functions and powers under section 200 (preamble). It therefore operates as ministerial guidance within the legal framework created by the Act. It references sections 200 and 201 in the preamble as the statutory context for deportation decisions.

Migration Regulations. The direction uses the Migration Regulations to define family for child and family considerations, referring explicitly to regulation 1.12 for the definition of family (preamble). That cross‑reference instructs decision makers to use the regulatory definition when applying the direction’s child and family tests.

Corrections and state law. The direction recognises the separate authority of state correctional systems and the Governor‑General for Commonwealth prisoners to determine conditions of sentences, remission and parole (para 32). It situates the deportation decision as administratively distinct from sentencing and corrections decisions: the decision maker must respect the corrections authorities’ judgments about release and remission timing when arranging deportation (paras 32-33).

Administrative Appeals Tribunal and merits review. The direction interacts with administrative review law by detailing when a person may appeal a deportation decision to the AAT , specifically, where the person’s sponsor is an Australian citizen or permanent resident (preamble). It states that the AAT is empowered to review the merits when appealable. The direction also interacts with statutory rules that permit ministerial excluded‑person declarations under the Act, whereby personal ministerial decisions can remove AAT review; since the direction itself implements the Minister’s procedural powers, it overlays administrative law review structures with a political check (tabling) when the Minister acts personally (preamble).

International human rights treaties. The direction expressly incorporates international human rights instruments , the ICCPR, CAT and the Refugees Convention , as constraints on deportation decisions and requires consideration of their protections at the point of decision (paras 25-31). It treats CAT’s prohibition on expulsion where torture risk exists as absolute (para 27) and notes the Refugees Convention Article 33(1) bar and its “particularly serious crime” exception (paras 28-31). The direction instructs consultation with internal legal advisers on ICCPR and CAT questions (paras 26-27). Those directions create a legal interaction between domestic administrative deportation practice and international law obligations.

Parliamentary processes. If the Minister personally adopts an excluded‑person declaration in a deportation decision, the Minister must table the notice of decision before both Houses of Parliament within 15 sitting days (preamble). This creates a parliamentary oversight interaction: the Minister’s non‑reviewable administrative exercise is subject to parliamentary visibility and possibly subsequent political or legislative inquiry.

Non‑discrimination law. The direction requires that deportation decisions be made without discrimination on enumerated grounds (para 2). This principle dovetails with Australian anti‑discrimination statutes and human rights obligations, although the direction does not itself create statutory anti‑discrimination causes of action. It requires decision makers to avoid discriminatory considerations in administrative deportation decisions.

Refugee status and refugee law processes. The direction instructs that refugee status recognition is relevant but not determinative for Article 33(1) Refugees Convention protection at the time of deportation: a person previously recognised as a refugee could nonetheless have protection cease by the time deportation is considered (para 29). It therefore interacts with the refugee status determination framework and requires decision makers to reassess protection status at the deportation decision point (para 29).

Operational immigration detention. The direction contemplates continued detention under the Migration Act pending deportation arrangements if removal does not coincide with release (para 33). That interacts with the statutory and administrative regimes governing immigration detention, detention review, and detainee rights under the Migration Act and other relevant laws.

Evidence and sentencing law. The direction treats the sentence imposed as an indicator of seriousness (para 12) but precludes certain time‑in‑Australia measures from determining the status of potential deportee (preamble). It interacts with sentencing and criminal records law in the sense that final convictions and sentence lengths are substantive triggers for deportation consideration under this direction.

The instrument itself records a date of effect and signature: it is signed by Philip Ruddock with a date recorded as 21 December 1998 and the text says the direction “has effect on and from the date of signing” (para 34). The document presented does not include any express amendment notes, repeal history, or subsequent variation language in the text.

There is no amendment chronology, revision marks, or schedules in the source material provided that indicate later amendments to this General Direction. Because the General Direction is issued pursuant to section 499 of the Migration Act, any statutory or administrative amendments affecting the Act, section 499 powers, or the Migration Regulations could have altered how this direction operates in practice after 1998; the instrument itself does not record such changes.

Practitioners should therefore treat the direction as a 21 December 1998 Ministerial direction as presented, but should verify the instrument’s current status in up‑to‑date Commonwealth legislation and administrative instruments databases. The instrument’s internal content includes multiple cross‑references to statutory provisions (sections 200, 201, and 499 of the Act, and regulation 1.12 of the Migration Regulations), so any amendments to those statutory or regulatory provisions post‑dating 1998 could affect the direction’s application. The source does not identify transitional provisions or savings clauses.

Because the direction contemplates procedural interactions with the Administrative Appeals Tribunal (preamble) and with international law obligations (paras 25-31), practitioners typically check whether subsequent General Directions, Ministerial directions, updated migration policy manuals, or higher court/adjudicative decisions have superseded or modified administrative practice. The source does not supply that information. The direction also contemplates Ministerial excluded‑person declarations and tabling in Parliament (preamble); changes to parliamentary practice, or to the statutory mechanics for excluded‑person declarations, would alter the instrument’s practical effect if enacted after 1998. Those changes are not recorded in the text.

In short, the source records the direction’s date of effect (para 34) and contains no internal amendment history or later versions. Users must consult official consolidated instruments, the Department’s policy publications and legislative databases for any superseding or amending instruments that post‑date this 1998 text.

The text of the General Direction provided contains no citations to case law or any record of litigation arising from this instrument. It does not name or summarise judicial or tribunal decisions that have interpreted or applied the direction. The source itself is a ministerial instrument setting policy and administrative guidance and, as presented, does not include any appended legal challenges, case notes, or references to precedential authorities.

Where litigation is likely relevant in practice is in three areas the direction itself recognises: (1) administrative review of deportation decisions by the Administrative Appeals Tribunal where the right to appeal exists (preamble); (2) judicial review claims in courts that might concern the legality or reasonableness of administrative decision‑making under the Migration Act and this General Direction; and (3) litigation invoking international human rights obligations (ICCPR, CAT, Refugees Convention) as constraints on removal or deportation (paras 25-31). The direction records the AAT merits review avenue (preamble) and warns decision makers to consider international obligations, but the instrument does not catalogue outcomes of such challenges.

Because the direction explicitly contemplates AAT review when the deportee has an eligible sponsor (preamble), the AAT’s body of decisions interpreting deportation decisions under the Migration Act will be operationally relevant; however, no AAT decisions are cited in the instrument. Similarly, the direction’s international law sections (paras 25-31) indicate areas where litigation or international complaints could arise, notably in non‑refoulement claims under CAT or Article 33(1) of the Refugees Convention; again, the instrument does not supply case law examples.

Practitioners should therefore perform a separate and contemporaneous search of tribunal and court databases to identify subsequent AAT decisions, Federal Court or High Court rulings, or international complaints that have engaged this direction, the Ministerial excluded‑person power, or the interplay between deportation decisions and non‑refoulement obligations. The instrument itself imposes a duty on decision makers to consult the Legal Policy Section in Central Office on ICCPR and CAT issues (paras 26-27), which in practice reflects the legal complexity and potential for litigation in those areas.

In summary, the source contains no litigation history or case citations. It anticipates administrative and legal contestation by preserving a right of merit review (subject to the excluded‑person exception) and by flagging international obligations that are frequently litigated, but it does not purport to summarise litigation outcomes.

Narrow definition of “potential deportee” and timing test. The direction defines a potential deportee by reference to a sentence of life or at least one year and the length of time the person had been in Australia as a permanent resident (or certain New Zealand status holders) at the time the offence was committed (preamble). Crucially, the direction treats as irrelevant the length of time in Australia at the time the sentence is imposed and whether the person actually serves a year in custody (preamble). Practitioners must therefore check the person’s residency status at the time of the offence, not at sentencing or release; failure to note that distinction will lead to incorrect eligibility assessments.

Sponsor‑dependent AAT review right. Appeal rights to the Administrative Appeals Tribunal exist only where the potential deportee’s sponsor is an Australian citizen or permanent resident (preamble). That is a conditional right to merits review and is not universally available. The direction also makes clear that the Minister’s personal decision combined with an excluded‑person declaration removes AAT review (preamble). Therefore whether the AAT can review a deportation decision turns on an external fact (the sponsor’s status) and on the Minister’s procedural choice.

Ministerial excluded‑person declaration and tabling requirement. If the Minister personally decides and declares a person an excluded person, the AAT right of appeal is removed; the Minister must then table notice before both Houses within 15 sitting days (preamble). Practitioners should note the twofold effect: removal of tribunal review but a parliamentary transparency obligation. The instrument describes excluded‑person declaration as reserved for circumstances deemed “so serious” and in the national interest by the Minister (preamble), but the direction does not define “so serious” or “national interest,” leaving scope for contested interpretation.

Children’s interests limited to under‑18s for primary consideration. The best interests of the child as a primary consideration applies only to children under 18 in a parent‑child or other close relationship with the potential deportee (paras 16-20). Children aged 18 and over are not treated as primary considerations under that heading and instead are considered under the hardship rubric for other family members (para 16). That distinction affects how weight is allocated in cases involving adult children.

Social ties developed after liability arose. The direction instructs that social ties developed after the liability for deportation arose, especially after the offender was warned about deportation risk, “may be given less weight” (paras 22(e), 24(c)). This creates a specific evidentiary trap: family or work ties formed after the person knew of deportation exposure may be discounted. Practitioners must gather timelines showing when ties arose relative to notice of deportation liability.

The sentence imposed is an indicator, not determinative. The direction treats sentence length as an “indication” of seriousness (para 12) but also provides a list of offences the Government regards as very serious irrespective of sentence nuances (para 11). Decision makers are required to consider both the nature of the offence and the sentence, but the direction does not fix a deterministic rule linking particular sentences to deportation outcomes.

International obligations can be absolute. CAT’s prohibition against expulsion where there are substantial grounds for believing the person would be at risk of torture is described as absolute (para 27). ICCPR protection is framed as implicit and requires Legal Policy Section consultation (para 26). Refugees Convention protection is conditioned by Article 33(1), and a “particularly serious crime” may remove Article 33(1) protection (paras 28-31). These provisions can produce non‑delegable legal constraints that trump the political desire to deport in specific cases.

Detention after sentence expiry. The direction explicitly states that a person may be held in migration custody pending deportation and should not expect liberty between sentence expiry and deportation (para 33). That interacts with Prisoner release and parole rules (para 32) and creates practical consequences: detained persons may face continued deprivation of liberty for administrative reasons.

“Very serious” offences list is broad. Para 11 lists drug trafficking, organised crime, sexual assaults, armed robbery, murder and other violent offences, terrorism, kidnapping, extortion and “serious theft (including ‘white collar’ crimes),” as well as ancillary offences including attempts, conspiracies and accessorial liability (para 11(a)-(m)). That means attempted or conspiratorial conduct that is ancillary to listed categories may fall within deportation considerations even if the substantive offence is not consummated.

Consultation requirements for international law issues. The direction requires decision makers to contact the Legal Policy Section for assistance on ICCPR and CAT points (paras 26-27). Failure to do so in cases raising non‑refoulement risk could result in procedurally deficient decision‑making.

Ambiguities left to decision makers. The direction frequently uses phrasing such as “it is the Government’s view” and “should have due regard,” which gives a mix of prescriptive and advisory weight but leaves substantial evaluative judgment to decision makers (multiple paras). This creates potential variability in outcomes depending on how individual decision makers interpret and weigh the listed factors.

No internal appeals or timeframes specified. Apart from the timing expectation that decisions are normally made towards the end of the sentence (preamble; para 32) and the AAT appeal condition, the direction does not set enforceable timelines for decision makers, nor does it provide a complaint procedure for decisions that are allegedly procedurally unfair beyond the AAT route where available.

Definition of family. The direction delegates the definition of family to regulation 1.12 of the Migration Regulations (preamble). Practitioners must check that regulation to determine which relationships attract the family and child protections stated in the direction.

Collect and record the facts that trigger potential deportee status. Decision makers should begin with the statutory triggers in the direction’s preamble: verify the person’s citizenship status, the final conviction, the sentence (life or at least one year), and whether the person had been in Australia as a permanent resident (or New Zealand exempt/non‑citizen/SCSV holder) for less than ten years in total at the time the offence was committed (preamble). Document explicitly that irrelevant considerations listed in the preamble (time in Australia at sentence, whether actually imprisoned for a year, non‑parole shorter than a year) were not relied upon.

Assemble all reasonably necessary information before deciding. The direction states a deportation decision will not be made until all information reasonably necessary is at hand and, in normal circumstances, will be made towards the end of the sentence to allow decision and appeal (preamble; para 32). Compliance requires active evidence‑gathering: criminal records, sentencing remarks, immigration history, family and community ties, medical and psychological reports, and information about the likely country of return.

Apply the primary considerations first, and document the balancing exercise. The decision maker must have “due regard” to the two primary considerations: community expectations (which includes protection and community desire to remove offenders who commit abhorrent crimes) and the best interests of any children under 18 in parental relationships (paras 5-6; 8-15; 16-20). For children, assess each child separately, and document the factors listed (age, time in Australia, language/cultural barriers, medical needs, psychological dependence, time spent with the parent) and any countervailing evidence (abuse, trauma) (paras 17-20). For community expectations, document assessments of seriousness of the conduct, recidivism risk, and deterrent effect (paras 9-14).

Consider hardship factors and record weightings. The direction lists the degree of hardship to the potential deportee and to Australian citizens/permanent residents as other considerations (paras 21-24). For the deportee, collect evidence of marital/de facto relationships, ties to the country of return, social/business ties in Australia, and rehabilitation prospects (para 22). For hardship to Australians, gather evidence on likely impacts on partners, family members, social networks and business associates and note whether post‑liability ties should be given less weight (para 23-24). Explicitly record the weight assigned to each hardship factor and the reasoning for that weighting.

Assess recidivism risk with reference to the indicators in the direction. Use the direction’s listed recidivism considerations: previous general conduct and total criminal history, whether the person re‑offended after a warning about deportation, frequency and timing of prior convictions, and rehabilitation already achieved or prospects of future rehabilitation (para 13). Document the evidence underpinning any risk assessment and the sources consulted.

Evaluate international law constraints and seek legal policy advice when required. For any case raising non‑refoulement issues under ICCPR or CAT, contact the Legal Policy Section in Central Office as the direction advises (paras 26-27). For Refugee Convention issues, determine if Article 33(1) applies at the time of decision and whether a person’s prior recognition as a refugee has ceased; if Article 33(1) is engaged, apply the “particularly serious crime” exception analysis where a final conviction for such a crime exists (paras 28-31). Record legal advice and the factual basis for any non‑refoulement determination.

Coordinate timing with corrections authorities. The direction states deportation should normally occur after the custodial portion of the sentence is completed and that release, parole, or remission decisions are for state authorities or the Governor‑General in the case of Commonwealth prisoners (para 32). Liaise early with corrections authorities to align release timing and deportation logistics. If deportation cannot be arranged to coincide with release, prepare administrative arrangements for continued detention under the Migration Act and document the reasons (para 33).

Assess appeal rights and procedural exposure. Determine whether the appellant has a sponsor who is an Australian citizen or permanent resident and thereby is entitled to AAT merit review (preamble). Advise the person of appeal rights where applicable and record the availability or removal of AAT review. If the Minister intends to act personally and declare the person an excluded person, ensure the Minister’s office is aware of the tabling obligation to both Houses of Parliament within 15 sitting days (preamble), and document any policy basis for the use of excluded‑person power.

Avoid discriminatory reasoning and document non‑discrimination. The direction requires non‑discrimination on listed grounds (para 2) and that cultural background not excuse unlawful conduct (para 3). Decision makers should explicitly record that no decision was based on any of the prohibited grounds and explain how cultural factors were considered in compliance with these requirements.

Deal with children’s best interests comprehensively. Where children under 18 are concerned, apply the full set of considerations in paras 16-20. Document separate assessments for each child, show how the child’s connections to Australia and to the deportee were considered, and include medical, educational and psychological evidence where relevant. Consider, and record, the likely effects of separation and of removal from Australia.

Record reasoning and create a decision file suitable for review. Because decisions may be reviewed by the AAT or otherwise questioned, record the facts, the statutory and policy triggers, the considerations taken into account, the weight assigned to each factor, any legal advice obtained, and the procedural steps taken (timing coordination with corrections, detention arrangements, deportation logistics). Make transparent how the balancing process was undertaken in relation to the primary considerations and the other factors.

Take into account ancillary offences and accomplice liability. The direction explicitly includes ancillary offences , attempts, conspiracy and accessorial liability , in the list of conduct considered very serious (para 11(m)). Ensure criminal records review captures such ancillary convictions and document their relevance.

Consider and document hardship for Australian citizens/permanent residents. For family members who are Australian citizens or permanent residents, gather evidence on whether partners would accompany the deportee, whether such a move would impose undue hardship, and the effect on other family members, social ties and business associates (paras 23-24). Record why post‑liability ties are given particular weight or discounted.

Plan for transparency when excluded‑person power is used. If the Minister elects to make an excluded‑person declaration and thus remove AAT review, ensure the Minister’s office prepares the required tabling notice and records the policy justifications that the Minister considers make the circumstances “so serious” as to warrant removal of review (preamble).

Review and update practice against current law. Because the direction references the Migration Act, Migration Regulations and international conventions, practitioners should cross‑check for any statutory or regulatory amendments, later General Directions, departmental policy changes, tribunal decisions or court precedents that affect the direction’s application. Maintain links to Legal Policy Section guidance and departmental policy manuals.